This presentation is based in part on the Legal Opinion by an International Commission of Legal Experts addressing the question of Catalonia: The Will of the People and Statehood. The Commission was composed of Professors Marc Weller (UK ), John Dugard (South Africa), Richard Falk (USA) and Ana Stanic (Slovenia). Although the Opinion was commissioned by Esquerra Republicana de Catalunya, its findings represent the agreed and independent views of the authors. While based on the Opinion, which will be published in due course, this contribution does not purport to give an authoritative rendering of it, but instead represents the views of the author.

This contribution assesses the claim to statehood of Catalonia, addressing in turn:

The criteria for statehood;

The legality or otherwise of unilateral declarations of independence;

The issue of self-determination;

Objective criteria of Statehood

Catalonia can easily meet the classical, objective criteria for statehood. It has a clearly defined territory of some 32,000 sq km, featuring clearly defined boundaries. Its stable population numbers around 7.5 million, far in excess of many recently independent states in Europe and beyond. It is the most economically viable region when compared to other parts of Spain. Even under autonomy within Spain, Catalonia has exhibited most of the functions of effective government.

Whether Catalonia would in fact exercise fully independent powers of government can only be assessed if and when it decides to implement its declaration of independence, at present suspended in application. Catalonia has generated a substantive transitional law, to apply pending the adoption of a new constitution once independence proceeds. That law would assign all public powers to the new state, including foreign affairs powers (‘capacity to enter into international relations’). Hence, Catalonia is, at least potentially, capable of statehood.

Negative subjective criterion

In addition to the classical, objective criteria, there are negative and positive subjective criteria of statehood. The negative criterion, confirmed by the International Court of Justice in the Kosovo Opinion, demands that statehood must not be tainted by jus cogens violations. There is no suggestion of such conduct by Catalonia in this instance.

First positive subjective criterion: A manifestation of popular will

The positive subjective criteria come in two guises: first, there must be an act of will of the population, and second, that will must be enacted through a declaration of independence.

Any change in the social contract of a political community as dramatic as an act of secession from the established legal order must be based on the will of the people. Ordinarily, this would take the form of a referendum, although in some instances (dissolution of Czechoslovakia), concurrent decisions of the elected national and regional assemblies have been taken to be sufficient.

The international legal requirements for a valid referendum are only emerging. Still, in analogy to emerging standards on democratic governance, at least within Western Europe, it is clear that there must be a free and fair campaign and a transparent and open balloting process. In this instance, any intimidation came from the side of the Spanish government, including arrests, raids and other measures against pro-independence campaigners and officials.

It has recently been asked whether a referendum should take place within the potentially seceding entity, or whether it needs to take place throughout the state from which secession is sought. This argument was attempted by the USSR, when seeking to oppose the secessions of the Baltic republics, before the Union dissolved. Clearly, widespread practice in the dozen or more cases since then has confirmed the obvious fact that the referendum requirements relates to the population seeking to establish a new legal order for itself. The interests of the other parts of the state are to be preserved through the requirement of negotiation, to which reference will be made below.

In some instances, a transition agreement provided for a minimum threshold of voter participation in a referendum (South Sudan). However, there are no firm international standards in this respect. The Catalonia referendum attracted participation of some 42 per cent of the electorate. However, Catalonia asserts that an additional large percentage of voters were precluded from participation due to the forcible closure of voting stations and other acts of interference by the central Spanish authorities. Had they been able to participate, Catalonia claims, participation would have been around 57 per cent. It is assumed that the overwhelming majority in favour of independence of some 92 per cent of votes actually cast would have been retained.

Given the active obstruction of the poll by the Spanish central authorities, extending even to forcible interference in it, any claim that that referendum lacks credibility due to insufficient participation rings somewhat hollow. Moreover, non-participation does not provide a way for the side likely to lose in a referendum to frustrate it, provided the poll was sufficiently fair and inviting for all. This was confirmed by the Badinter Opinion in relation to the Bosnian referendum that was boycotted by ethnic Serbs.

Second positive criterion: Declaration of Independence

The nature of the declaration of independence, signed by the President of Catalonia on 10 October 2017, but immediately suspended, has remained slightly uncertain thus far, leaving room for negotiation with the central authorities of Spain. Its entry into force would require a further act on the part of the Catalonian authorities, potentiallyto be backed by a vote of the elected representatives.

A criterion of internal legality?

Spain has argued that the actions of the Catalan authorities, reaching back to its declaration of sovereignty on 23 January 2013, are in violation of Spanish constitutional law. The Constitutional Court of Spain has consistently supported this view. Somewhat oddly, it has recently started to act as enforcement agent of its decisions, assigning what appear to be disproportionate fines to individuals supposedly disregarding its findings (apparently accumulating at a staggering rate of Euro 12,000 a day in some instances).

This issue raises the question of which legal order governs an act of secession. Obviously, an act of secession consists precisely of the removal of a population and territory from an existing legal order and the consecration of a new, independent legal order. Hence, it is not appropriate to evaluate the lawfulness of unilateral secession according to the legal order against which it is directed.

The international Court of Justice found as much when it considered the declaration of independence of KosovoIt Court determined that the declaration was not issued by the elected representatives of Kosovo acting as an organ of the state from which secession was sought (in that case, the Provisional Institutions of Self-government of Kosovo). Rather, one might assert, these representatives were now exercising a direct mandate from the people in founding a new, original jurisdiction. The Court continued: ‘nor was it an act intended to take effect, or actually taking effect, within the legal order in which those Provisional Institutions operated,’ thus clarifying expressly that a declaration of independence does not take place within the legal order from which the entity seeks to remove itself [Kosovo AO, para 121.] In relation to Kosovo that legal order was based in a Chapter VII decision of the UN Security Council. The rationale of the Court would, a fortiori, apply to cases of ‘ordinary’ constitutional law not based in such a higher-level, supranational decision. Hence, much of the argument relating to the purported unconstitutionality of Catalonia’s conduct at the point of declaring independence appears to be misplaced.

Capacity to Enter into Foreign Relations and Recognition

It is broadly accepted that the existence of a state is a matter of fact, rendering recognition declaratory. This was noted in the Badinter Opinions and confirmed in subsequent pronouncements. Hence, the attempt by some to conflate the requirement that a state must have the capacity to enter into international relations with the need to attract widespread recognition is not persuasive—it would mean introducing the constitutive theory of recognition through the backdoor, after having just rejected it. Instead, capacity to enter into international relations means just that: capacity. A state must claim for itself the legal competence to engage in foreign relations. This requirement, drawn from the venerable Montevideo criteria, made sense when the international system was populated with a range of quasi sovereign entities, such as protectorates, which might have been lacking in that attribute.

That said, it is for course clear that recognition remains crucial, if not for statehood as such, then for the ability of an emerging state to actualize its statehood through international intercourse and membership in international relations. As Somaliland has found for over two decades, statehood in the absence of significant recognition remains precarious. And, as Kosovo is still finding despite having assembled some 115 recognitions, independence without membership in key international institutions can be uncomfortable.

No prohibition of independence

In the past, it was sometimes argued that unilateral independence cannot lawfully occur, as it would breach the rule of territorial integrity in international law. The only way to cure this defect would be consent to independence from the central authorities, or perhaps overwhelming international acceptance of statehood in exceptional circumstances. This minority position has now been overcome by the International Court of Justice. In the Kosovo Opinion, the Court confirmed that ‘the principle of territorial integrity is confined to the sphere of relations between states.’ [Id., para 80.] That is to say, the principle precludes disruption of the territorial integrity of one state by another, but it does not apply internally, in relation to populations seeking secession.

It is clear that there is a strong policy preference of states for maintaining territorial unity. At times, this preference has been reflected in pronouncements by the UN Security Council. However, as a matter of law, rather than policy preference, the international system is neutral on the question of secession. [Quebec Reference, para 140].

An entitlement to secession?

If secession is not prohibited, this means that its success of failure will be determined by the question of whether or not the seceding entity gains and maintains effectiveness. This type of case might be termed an ‘unprivileged’ secession. Of course, international law also provides for privileged secession. These are instances covered by the principle of self-determination in the sense of secession.

In cases of privileged secession, international law positively supports possible independence as a desired outcome. This effect is particularly powerful in colonial cases. By 1960, the organized international community accepted that colonialism is a historic wrong. It later enacted an aggressive doctrine of self-determination, aiming to ensure that that decolonization would succeed in relation to the increasingly few holdout colonial states (mainly pariah states like the then still fascist Spain and Portugal, and racist South Africa).

The immense power of the doctrine of colonial self-determination is however balanced by its restrictive field of application in the colonial context, by its confinement to self-determination within uti possidetis boundaries, and by the fact that the doctrine generally only applies at one single moment in time. Many populations around the world experience what they consider colonial domination or exploitation. However, it is clear that colonial self-determination now only applies to a handful of cases that remain clear instances of classical colonialism so listed by the UN. Or, in other words, these are cases of the acquisition and domination of a territory and population, during the time of imperialism, by a metropolitan power that is radically racially distinct and divided from the colonial territory by an ocean, for the purposes of economic exploitation. Catalonia is clearly not among them.

Catalonia can also not rely, at least directly, on the doctrine of constitutional self-determination which was consecrated in the wake of the secessions from, and then the dissolution of, the former Yugoslavia. Under Spanish constitutional law, Catalonia is clearly an autonomous territory. Indeed, in contrast to some other autonomies in Spain, it is an ‘original’ autonomy, taking account of its distinct history, language and culture. However, in view of the clear provisions opposing secession in the Spanish constitution, it would not be easy to derive a claim to self-determination from the domestic legal order of Spain.

Catalonia will undoubtedly point to the increasing human rights violations committed by the central government over the past weeks. Moreover, there is the threat of placing Catalonia under direct rule, suspending its autonomy, which may well be implemented before this contribution is posted. It might be tempted to invoke the doctrine of remedial secession in consequence. According to that still contested doctrine, repression of a population, or its exclusion from representation in the state, generates a self-determination entitlement in the sense of secession. However, it is not clear that the gravity of repression or exclusion is sufficiently well established as yet to trigger the application of the doctrine.

Self-determination in Democratic Societies

This does however not mean that self-determination as a legal entitlement is irrelevant in this instance. It is universally agreed that the authority to govern must be based on the will of the people, as is stated in innumerable international standards, starting with the Universal Declaration of Human Rights. Virtually all national constitutions are expressly based on this democratic principle which has also been determined to be a ‘fundamental feature of the European public order. [Mathiue-Mohin and Clerfays, ECTHR Judgement of 2 March 1987, para 47.]

The highly nuanced ruling of the Canadian Supreme Court in the Quebec case has applied this doctrine to the present context of possible secession. It was noted above that a declaration of independence marks the point at which the seceding entity steps out of the constitutional order of the central state. Its conduct up to that point remains subject to constitutional law, although even then the central state is not unconstrained. While the Court found that there was no positive entitlement to statehood outside of the colonial context or in the absence of severe repression or exclusion from the state, it nevertheless concluded that a state cannot ‘remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. The rights of other provinces and the federal government cannot deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec chose that goal, so long as in doing so, Quebec respects the rights of others.’ [Quebec Reference, para 87.]

The mechanism to ensure that a seceding entity respects the rights of other parts of the state is, according to the Supreme Court of Canada, negotiation. Secession should not be imposed unilaterally, nor can it be excluded from the outset. Iinstead both sides are required to negotiate in good faith about a settlement. As the Court put it: ‘The negotiations that followed such a vote would address the potential act of secession as well as its possible terms should in fact secession proceed. There would be no conclusions predetermined by law on any issue.’ [Id, para 151.] Others might add that alternatives to secession should be attempted, before independence should be contemplated.

In this instance, Catalonia can claim to have embraced alternatives to independence and offered negotiations throughout. In 2006, it settled for an enhanced autonomy arrangements that would have recognized its identity as a nation. This agreement was accepted by the Spanish and Catalonian parliaments, followed by a referendum in Catalonia. The Constitutional Court, in 2010, struck down key elements of the deal, including the recognition of Catalonia as a ‘nation’ within Spain.

Since then, Catalonia has taken a series of steps, including its declaration of sovereignty of 2013an informal public consultation on possible independence of 2014, the regional elections of 2015 billed as a virtual referendum on independence, and now the recent referendum.

Catalonia points to the fact that it has offered negotiations throughout. Spain has refused and instead insisted on compliance with the existing constitutional order, and continues to do so.

To the Catalonians, it may appear as if this legal order has been used at every step as a means to disenfranchise, rather than enfranchise them in relations with Spain. After all, that legal order has already failed to deliver even the modestly enhanced autonomy backed at the time by popular will in Catalonia and by the acts of the Spanish legislative and executive adopted according to the constitutional process.

If discussions within the constitutional order cannot produce results, or if it appears to one side that that order is bound to place it in a position of inequality and disadvantage, it is not surprising that pressure to simply step out of that framework through a declaration of independence increases. Croatia and Slovenia took that view when the central authorities in Belgrade failed to contemplate a looser federal system for Yugoslavia. Belgrade had relied on its dominance in the Yugoslav central institutions, and on the fact that independence did not appear to be available in the alternative. In the end, the entire state dissolved in consequence.

24 Responses

This is very helpful in some respects. I have a great deal of respect for the authors. I also have a few quibbles.

“Hence, it is not appropriate to evaluate the lawfulness of unilateral secession according to the legal order against which it is directed.”

With respect, this is imprecise. It is entirely appropriate to evaluate the lawfulness of conduct pursuant to Spanish law if that is the question asked; it’s just that it doesn’t answer the question of whether the same conduct violates international law as well.

“The international Court of Justice found as much when it considered the declaration of independence of KosovoIt Court determined that the declaration was not issued by the elected representatives of Kosovo acting as an organ of the state from which secession was sought (in that case, the Provisional Institutions of Self-government of Kosovo).”

This is unclear and would benefit from editing. The ICJ did its best to dodge the implied questions in the advisory opinion, but to assert that conduct that is illegal under domestic law cannot now be declared as such is to stretch the opinion too far. A successful secession may make domestic illegality moot in practice, but unless and until that happens, it’s not moot in practice or under domestic law. Nor would secession necessarily serve as a defence for individual conduct in the parent state.

“However, it is not clear that the gravity of repression or exclusion is sufficiently well established as yet to trigger the application of the doctrine.”

With respect, it is pretty clear. It’s not sufficient. It in no way diminishes the conduct of Spanish authorities to note it is minimal compared to conduct in, e.g., Kosovo. Embracing this standard is a recipe for chaos. It invites mischief. For verification, one could ask those who have died in Eastern Ukraine. I may be wrong, but it appears the primary complaint until the referendum is that the national system of taxation and expenditure is too progressive, and that thus on a simplistic level a comparatively well-off region pays more than it receives. That’s a legitimate subject for national discussion, but it does not amount to an atrocity.

“The lesson of the past therefore may be that it is good to talk.” That is exactly right. Spain should do better. But this is good advice for both sides. I hope that’s managed. But secession isn’t talk. It also doesn’t necessarily address the rights of those individuals who want to remain Spanish citizens (according to polling I’ve seen so far, the long-standing majority). If international lawyers are to play a helpful role, perhaps the varieties of federalism, subsidiarity, and internal self-determination could be further explored. Would that Juan Linz was here today to assist.

“Since then, Catalonia has taken a series of steps, including its declaration of sovereignty of 2013an (sic) informal public consultation on possible independence of 2014, the regional elections of 2015 billed as a virtual referendum on independence, and now the recent referendum”

The author forgets to say that pro-independence forces lost the 2015 “referendum”, which is the last “consultation” held in Catalonia that offered all the required guarantees. Of course, the pro-independence forces never accepted the result and continued pursuing their agenda by creating state structures “on behalf of the Catalan people”. And now the Spanish government appears as the bad guy when it tries to take control of the situation in order to enforce a democratic constitution.

This is just one more example of how a referendum can be a toxic instrument in the hands of irresponsible politicians. It is also an example of how “external expert studies” can make things worse when they are not closely familiar with the context. Yes, the Spanish government has failed to engage in serious dialogue on the constitutional recognition of Catalonia as a nation –perhaps because a few years ago only a minority cared about these issues-. But the regional government has been all but a fair player of this game.

‘I may be wrong, but it appears the primary complaint until the referendum is that the national system of taxation and expenditure is too progressive, and that thus on a simplistic level a comparatively well-off region pays more than it receives.’

I believe that you re wrong here, both in the way you describe the fiscal issue (it has nothing to do with social and income progressivity, but rather concerns the system to calculate and implement the transfer of resources between regions and the central state), and especially in your identification of this issue as the main one. No less important have been repeated attacks on the legislative capacity of the Catalan Parliament by means of the constitutional court, including highly sensitive issues about education in Catalan where there was a consensus in Catalonia but it was disliked and often misrepresented in Madrid. And clearly the turning point was the overturning of the new statue by the constitutional court, an process plagued with irregularities that called into question the court’s impartiality.

Thank you for this very interesting post! It represents a fascinating take on the question of self-determination. At the same time, it is thought provoking, and so I have some concerns, a few of which follow below.

“This minority position has now been overcome by the International Court of Justice. In the Kosovo Opinion, the Court confirmed that ‘the principle of territorial integrity is confined to the sphere of relations between states.’ [Id., para 80.] That is to say, the principle precludes disruption of the territorial integrity of one state by another, but it does not apply internally, in relation to populations seeking secession.”

This is of course true. But I imagine it can be phrased in more general terms, for which I believe there is strong support in all sources of international law. In fact States are obliged to respect the territorial integrity of other states, which I take to include non-recognition of unilateral actions to enforce secession. Without either recognition or support (due to the absence of a clear case for self-determination), calls for self-determination will remain in limbo despite the presence of effective government, as the example of Somaliland clearly shows, and possibly also the Kosovo example. Any such support would seemingly violate the obligation to respect the territorial integrity of the State in question. Perhaps someone would care to comment on this?

In the Kosovo case, a key point is that the ICJ did not address the question of whether unilateral secession is lawful, but proceeded to consider the lawfulness of the declaration (unfortunate according to some of the sepate opinions). This is crucial to me because the interim framework for Kosovo was quite specific about the proceedings on a political settlement of the final status question (constrained by the Rambouillet agreement). To my judgment, had the legal issue of actual secession been determined by the ICJ it would have been much harder to claim that it did not “violate general international law, Security Council resolution 1244 (1999) or the Constitutional Framework”.

Other questions also arise of whether the cases are comparable, seeing as the constitutional framework seems not to have covered the basic orders pertaining to sovereign states. Actual secession would have been tested against Serbia’s claims of sovereignty, and not only against the interim framework, I presume.

In the same case, the Court acknowledged and placed some significance on the Secretary General’s reaction to the declaration. The SG had a duty to act if the declaration was an act “ultra vires”. According to the Court, since he remained silent on the declaration, he did not consider it to be violating the interim framework. Accordingly it was deemed that he considered it as lying beyond his jurisdiction–seemingly without making the distinction between “the people” and their representatives “acting” through the declaration. Certainly the situation with regard to a sovereign entity (which the interim regime was not) would be different different–which both the Spanish PM and constitutional court has indicated. I guess the question is if there is no major difference between an expression of independence–which a referendum and declaration of independence is–and actually seceding? In the case of Catalonia, surely voters did nothing illegal, but the organizers of the vote most likely did.

Finally I would like to ask if it is correct to assume that the implication of your interpretation means that any people within a defined territory with state-like capacity, which acts in unison to declare their wish to gain self-determination, is acting outside of any constitutional order which may nullify such actions? And would this then justify recognition of the seceding entity by other states? I may have missed the point, but I must say I find it hard to see how these things make sense in a still State-centric international law.

Thank you for this very interesting and informative piece.
Regarding the comment by Jens Iverson, I would only like to point out that the first step to “address the rights of those individuals who want to remain Spanish citizens” would be to authorize a referendum in order to establish, with more precision and clarity than polls, how does the people in Catalonia feel about independence, how many would like to remain in Spain, how many do actually want independence and how many do not want to participate in such a referendum. Unfortunately, the central government and the two main Spanish parties have already rejected the possibility of a legal referendum. It is, in short, a question that cannot be addressed in the current Spanish constitutional order.

The position of European States arguing the absolute respect for territorial integrity of Spain has to be compared with their position concerning Kosovo.

Concerning Kosovo ICJ advisory opinion, the written arguments presented by different States are extremely interesting to review (see full list at: http://www.icj-cij.org/en/case/141) in order to compare their position in 2008-2009 with regard to Kosovo and now, in 2017, with regard to Catalonia.

As known, Spain (as well as Greece and Roumania, among others) does not recognize Kosovo, maintaining a consistent position from the legal perspective.

Among many States in favour of Kosovo´s proclamation, the written opinion of France is interesting to read:

Prof. Rubiés, that’s an informative response, thank you. Your post on the subject is quite interesting as well. I’m honestly curious with respect to what’s motivating secession. Is it really more cultural than economic? So in your view, if Catalonia was the poorest region receiving the most aid but still was seen to have interference in cultural education there would be largely unchanged secessionist sentiment? Or would it make more of a difference if the economic arrangement (which it still seems to me has something to do with progressivity) was the same but there was more cultural/education freedom? In any case, I hope there’s no more violence. A new local election might help clarify issues and encourage new discussants to step forward.

Thank you very much professor Weller and the team for this timely and useful contribution. There seems to be a confusion among many participants between our political preferences and a developed or discernible legal principle. Let us look a bit deeper in history and the development of the so-called “right” of self-determination (I hope the quotations marks will not annoy the reader and that the essence of my contribution will justify their use) in order to discern a pattern or some sense. The very inception of the concept occurred in a specific context, which was the system of mandated territories established by the League of Nations the UN predecessor. A system, under which the victorious Allied powers in the wake of the World War I were given mandate to govern the defeated powers’ possessions in Asia and Africa. According to Hannum the system was wholly dependent on politics, not on law; in other words no discernible legal principle or rule emerged. It was only with the establishment of the United Nations in the wake of the World War II that a reference was made to an entitlement of a people to freely determine their destiny and only after the decolonisation processes started to take place in early 1960s. The Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by the UN General Assembly in 1960, “[s]olemnly proclaimed the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations” and declared that “[a]ll peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.” But the same document established a respect for another, much older and opposing principle of territorial integrity (uti possidetis – keep what you have!) by determining that: “Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations”.
As far as the post-colonial context is concerned one episode in particular provided an opportunity for at least some kind of clarification on the “right”. In order to provide the European Community with a legal advice on the legality of secessions occurring in the former Yugoslavia a commission was created (Badinter), who, in the shortest possible terms, created a presumption of statehood for those who declared independence from the former Yugoslavia and then used it as a principle for denying the same right to units wanting to separate from the newly created states! (See also M. Craven, ‘The European Community Arbitration Commission on Yugoslavia’ (1995) 66 B.Y.B.I.L. p. 333). Legally speaking, the main problem with the Commission’s reasoning is its partial application of the principle of uti possidetis. It utilised the principle with respect to an entity that, at the time of giving its opinion, was not a state; but it refused to recognise the applicability of the principle of uti possidetis regarding the Yugoslav borders which still had the character of internationally recognised borders.
The principle of not having any consistent principle was confirmed in the Kosovo episode, in which a unilateral declaration of independence (declared “illegal” in the same way as the Catalans’!) was supported by a military action against the state denying it to the region, even in spite of lack of authorisation by the United Nations!
So, the principle on the “right” of a people to self-determination seems to have nothing to do with fulfilling any legal conditions or requirements but it is wholly placed within transparent political considerations.

Dear friends and colleagues, many thanks for the comments thus far. Of course, it is clear that an issue of this kind will elicit a broad variety of responses. I am looking forward to offering a consolidated answer in a little while.
In the meantime, it has been brought to my attention that the declaration of independence of 10 October was not only signed by the President acting in his capacity as elected representative of the people, but also by a majority of members of the Catalonian parliament, acting in a similar capacity. This could mean that from the perspective of the Catalonian representatives, no further action to bring the declaration into force would be required once its suspension has been ended, in the absence of the prospect of good faith negotiations.

I am a little confused over the distinction between ‘objective’ (so to speak Montevideanos) criteria and ‘subjective’ criteria; the latter (popular will and its manifestation in DI) would seem at least as objective as the putative future capacity of the Catalan entity to enter into inter-state relations, so long as adequately representative and transparent referenda are appealed to. Where subjectivity enters is perhaps in such policy matters as combining/balancing the outcomes of local (here Catalan) referenda with the outcomes of whole-state (Spain) referenda or other objective measures of the “will” of the present state’s entire population (its Constitution??). That algorithm is perhaps elusive.

“Hence, it is not appropriate to evaluate the lawfulness of unilateral secession according to the legal order against which it is directed.”

I’m not a legal expert Professor Weller but I think not only is it appropriate to do so in this case but it is absolutely essential.

The ratification of the Spanish Constitution of 1978 by 93% of Catalans formed a legally binding contract between Catalonia and the rest of Spain that prevents secession.

Unlike Kosovo, where there were serious breaches in that “contract” along with major sociopolitical factors that would be considered material changes to that “contract” the Catalan situation doesn’t satisfy either of those two conditions.

In fact, the Catalans are better off and more wealthy today than they were in 1978 and they enjoy more freedoms and autonomy that was granted to them by the 1978 constitution.

On that note, I think it’s extremely important to ask the question of whether someone, a group or a region can claim the right of self-determination once they have given up that right and benefited grossly from doing so.

I reckon that right can only be restored through a constitutional change in Spain where the other parties to that “contract” (i.e. the people of Spain) willingly restore Catalonia’s right of self-determination.

By the way, I question your interpretation of the referendum numbers. Aside from the fact that those results were clearly fudged and can not in any way be viewed as accurate or reliable, the referendum was boycotted by anti-independence population because of its illegality.

You suggest this boycott is irrelevant because of the opinion on the Bosnia referendum. In that case even if all of the 1.3 million Serbs had attended the polls voted no, it wouldn’t have changed the results.

The most credible opinion polls prior to the referendum indicated 60% of Catalans were against independence and the most recent poll after the referendum suggests 70% of them think regional elections should be held to resolve the current impasse.

In conclusion, I suggest not only that there is no “manifestation of popular will” here but that “internal legality” would very much be central to any authoritative rendering on this situation.

Catalonia is a wonderful country and I wish the best for them. However, coming from the Basque Country I cannot see how this whole issue can be dealt with in international law without considering the recent political history of the entire country – the dramatic period of terrorism and how much Basques & Spaniards alike, on any side, suffered under the ongoing power struggle. Nor, to my knowledge did Catalonians ever showed much solidarity with the Basque cause. Instead, to my knowledge they put obstacles in momentous constitutional and political events. There must have been reasons for that.

Without being a legal expert in the question, as you obviously are, I can however affirm that we have been there before (and it was not fun) and that the strict legal-technical study would benefit from a historical perspective, and why not to say it, from a little bit of realism both from Catalonians and from external observers.

Thank you so much for such a thought provoking analysis of Catalonia’s independence from the perspective of international law. I’m afraid I must respectfully disagree with your interpretation of the Catalan case in light of the theoretical framework presented. As is claimed, “The positive subjective criteria come in two guises: first, there must be an act of will of the population and second, that will must be enacted through a declaration of independence.”

First, was the referendum on October 1st an act of will of the people? Prof. Weller argues that a valid referendum requires “a free and fair campaign and a transparent and open balloting process.” And argues that “In this instance, any intimidation came from the side of the Spanish government, including arrests, raids and other measures against pro-independence campaigners and officials.”
In my opinion, the referendum lacked any of the minimum guarantees for the results to be valid under the criteria of the Venice Commission: there was no public electoral register, and as it was announced at 8 o’clock on voting day, citizens may vote in the polling station of their choice; and authorities were far from any duty of neutrality and transparency. Also, there was no impartial body in charge of overseeing the referendum. The (non-impartial) electoral board appointed by the independentist majority resigned in view of the sanctions that could have been imposed by the Constitutional Court. Furthermore, the people serving at the electoral stations (in charge of the election count) had not been previously appointed, but they were mainly volunteers in favour of independence. In the end, the referendum was self-organized by the supporters of one option. The Law on the referendum of self-determination had been passed by the Catalan parliament less than a month in advance, and had been challenged by the Spanish government and suspended by the Constitutional Court.
Over the weeks leading up to the referendum, the Spanish government and the judiciary took action to dismantle the referendum. On October 1st, the police charges were disgraceful and totally unnecessary. And yet, the police charges cannot be instrumentalized to legitimize the outcome of the referendum. In those circumstances, given the lack of minimal guarantees, the referendum was not a valid instrument to assess the support of independence in the Catalan society. While the referendum was indeed an act of political protest, I believe the outcome cannot legitimize the President of the Catalan government to speak in the name of the people and unilaterally declare independence.
Moreover, Prof. Weller argues that “The Catalonia referendum attracted participation of some 42 per cent of the electorate. However, Catalonia asserts that an additional large percentage of voters were precluded from participation due to the forcible closure of voting stations and other acts of interference by the central Spanish authorities. Had they been able to participate, Catalonia claims, participation would have been around 57 per cent […] Given the active obstruction of the poll by the Spanish central authorities, extending even to forcible interference in it, any claim that that referendum lacks credibility due to insufficient participation rings somewhat hollow.” First, I would say that “Catalonia” does not “claim” or “assert” anything, but whoever the source of the authors is. Second, it might be that some people decided not to participate in the referendum because they were afraid, but actually there were many testimonies of people who initially did not intend to vote, and decided to do so in response to the police action. Third, even if some polling stations had been closed down by the police, anyone could vote anywhere. In the end, the referendum did not lack credibility due to insufficient participation, but due to insufficient guarantees. In those circumstances, the outcome is not at all reliable and cannot be regarded as an expression of the will of the people. Could you imagine Brexit decided in a referendum of this sort?

Second, has there been a declaration of independence? I very much agree with the line of argument developed by Prof. Iverson. I’m not sure either why “it is not appropriate to evaluate the lawfulness of unilateral secession according to the legal order against which it is directed”. It is not excluded that secession can take place following the legal order, such as in the would be cases of Québec or Scotland. I would say that Catalonia is much closer to those cases, than to the dismantling of the ex-Yugoslavia or the USSR.
A different question would be whether a unilateral declaration of independence of Catalonia would be lawful according to international law. Following Weller’s argument, we can conclude indeed that Catalonia would not be entitled to secession under international law. In my opinion, it is clear that Catalonia cannot invoke the doctrine of remedial secession. Regrettable as the police charges were, this was (up to now) an isolated event.
Finally, let me say something with regard to the alternative legislation passed by the Catalan parliament, i.e. the Law on the referendum of self-determination and the Law on transition and foundational of the Republic. These two laws were passed by the Catalan Parliament in one single day each (September 6th and 7th), in breach of the internal regulations of the Catalan Parliament, the demands of transparency, and the rights of participation of minority groups. They became a sheer expression of the tyranny of the majority against which Tocqueville warned us in The Democracy in America.
Moreover, the independentists are not even abiding by their own laws. According to article 4.4 of the Law on the referendum, the official proclamation of independence corresponds to the Catalan Parliament. On October 10th, in a plenary parliamentary session, President Puigdemont assumed the political mandate deriving from the referendum, and proposed that the Parliament suspended the effects of the declaration of independence. Nonetheless, the Parliament neither declared, nor voted anything. After the plenary session, all deputies pertaining to the secessionist parties met in a different room to sign a declaration of independence, which lacks any legal effect, and cannot amount to an official political declaration either. This was a private document signed by the deputies in favour of independence in a deplorable act of patrimonializing the Parliament for their own benefit. How can any of this be regarded as an act of self-determination in a democratic society?

In the end, I would agree that “Secession should not be imposed unilaterally, nor can it be excluded from the outset. Instead both sides are required to negotiate in good faith about a settlement”. The current Spanish government has conspicuously ignored a legitimate political claim that has, maybe because of that same reason, gained increasing support in Catalonia. Nonetheless, as questionable as that position might be, independence cannot be unilaterally imposed by the secessionist parties upon the Catalan people.

Thank you for your interesting post. Considering that this legal opinion is, as you noted in your disclaimer, based on a report commissioned by a Catalonian independentist political party, which receives public funding from Spanish tax-payers, and considering that many members of the current Catalonian government may face criminal charges for ’embezzlement of public funds’, according to the Spanish national press:https://elpais.com/ccaa/2017/09/08/catalunya/1504871965_335327.html in relation to recent activities which have been declared illegal by the Spanish Constitutional Court, is there any risk, in your opinion, as an associate tenant of the Doughty Street Chambers, which has made public a press-release regarding your authored legal opinion http://www.doughtystreet.co.uk/news/article/associate-tenants-marc-weller-and-john-dugard-prepare-a-legal-opinion-on-ca, that the Spanish authorities might, in due time, deem proper to investigate, as part of their broader investigation on the use of public funds in relation to the events in Catalonia, whether the costs and/or legal fees associated to the preparation of the ‘Legal Opinion by an International Commission of Legal Experts’ may be, in any manner, be deemed to constitute ’embezzlement of public funds’, otherwise, in Spanish ‘malversacion de fondos publicos’ on the part of ‘Ezquerra Republicana de Cataluna’?.

As a scholar, who is also trained in Spanish law, I think that the scenario just described is, nonetheless, a highly unlikely one under Spanish law.

Dear Marc,
Under my point of view, most of the factual assumptions in your post –and, therefore, some of their legal consequences– are, unfortunately, not correct. However, I will focus my answer only in one aspect around the legal threshold of the “manifestation of popular will” allegedly held in Catalonia in last 1st October plebiscite.
Perhaps in general international law, legal requirements for a valid referendum may be “only emerging”. But not in Western Europe where the Code of Good Practice on Referendums adopted by the Council for Democratic Elections and the Venice Commission at its 70th plenary session (CoE Doc. CDL-AD(2007)008) are fully accepted as current law on referenda in Europe. In a solemn declaration dated 13 May 2004 (CoE Doc. CM(2004)83 final), the Committee of Ministers of the Council of Europe recognised “the importance of the Code of Good Practice in Electoral Matters, which reflects the principles of Europe’s electoral heritage, as a reference document for the Council of Europe in this area, and as a basis for possible further development of the legal framework of democratic elections in European countries” (I underline). The basic principles may be summarised in universal, equal, free and secret suffrage, including some basic components which were plainly ignored in the 1st October plebiscite:
– there was a total absence of “neutral attitude by administrative authorities” since the regional government and the public mass-media was openly campaigning in favour of the independence, without a “balanced coverage”, and the campaign and the funding of the participant movements were non “transparent” (point I.2.2 of the Code);
– on the contrary, it was presided by an “excessive, one-sided campaigning” and “the use of public funds by the authorities for campaigning purposes [were not] prohibited” (point I.3.1(b) of the Code);
– although the question put to the vote was clear and not misleading (“independece: yes or no”), the public campaign suggested the answer and electors were not informed of the effects of the referendum (they were said that the independence would be politically smooth, with no economic consequences, that Catalonia would be automatically recognised as a new State by the international community and that it would remain as a State member of the EU, the UN or NATO, among other things), against what it is said in point I.3.1(c) and (d) of the Code since the regional government did not provide the voters with “objective information”, including an “explanatory report” which had to be sent “directly to citizens and be received sufficiently far in advance of the vote” and giving “a balanced presentation not only of the viewpoint of the executive and legislative authorities or persons sharing their viewpoint but also of the opposing one.”
– The votes were not casted in official polling stations under independent observers and the counting was not transparent, the police action not being an excuse for violating “the right to accurate establishment of the result by the body responsible for organising the referendum, in a transparent manner, and formal publication in the official gazette” (point I.3.2(b) of the Code). On this point, it must be reminded that there were uncontrolled votes across the region –n 149 of the 948 municipalities of Catalonia there were more voters than census!– where people could vote several times in different polling stations thus avoiding the police action;
– The plebiscite was not organised by an impartial body as requested in point II.3.1 of the Code: it was not permanent, and “political parties or supporters and opponents of the proposal put to the vote [were not] equally represented on [the] electoral commissions”, neither were “able to observe the work of the impartial body”. The Electoral Commission created by a law suspended by the Constitutional Court was composed by members directly nominated by the regional government and resigned a few days before the voting day.
– Last, but not least, the organisation of the plebiscite also ignored a pivotal principle of the Code: that any referendum “must comply with the legal system as a whole, and especially the procedural rules. In particular, referendums cannot be held if the Constitution or a statute in conformity with the Constitution does not provide for them, for example where the text submitted to a referendum is a matter for Parliament’s exclusive jurisdiction” (point III.1 of the Code); and “[t]exts submitted to a referendum must comply with all superior law (principle of the hierarchy of norms). They must not be contrary to international law or to the Council of Europe’s statutory principles (democracy, human rights and the rule of law).” (point III.3 of the Code) It would be humorous if not so serious: the plebiscite did not even respect its own particular ad hoc legislation enacted by the regional parliament on the 6 September 2017!
No neutral observer could deny these circumstances, not even the “international observers” appointed by the regional govern who were not able to certify the validity of the plebiscite. These are the facts.

[…] the region. The recent situation in Catalonia has already been addressed on this blog (see here and here). What is striking – or perhaps not – is how little international law actually has to say on […]

I have read with interest Professor Weller’s piece in relation to Catalonian Secession. I note that this piece was drafted by the author together with other colleagues entitled “The Will of the People and Statehood”, a study commissioned (for payment) by one of the several parties currently in a coalition government in Catalonia (ERC).

For a piece which grounds its analysis on “the will of the people” and states that one of the criteria for statehood is that ‘there must be an act of will of the population’, it is puzzling then to read that ‘it is not appropriate to evaluate the lawfulness of unilateral secession according to the legal order against which it is directed.’

The points below do not intend to contribute to any analysis of secession in international law, but rather to clarify the facts that underpin the analysis of secession in the case of Catalonia.

The will of the people

The Spanish Constitution is not a pamphlet or a simple act of parliament which can be disregarded when it suits partisan agendas. Like every constitution, it seeks to establish a framework for the peaceful and orderly cohabitation of the People. It is therefore essential that the rules of the game be respected, including by amending them to reflect a new understanding of the political community, and this must be done respecting the will of the people. The Spanish Constitution is certainly not a top-down imposition of a foreign legislator on the Catalonian people. The Spanish Constitution is in fact the utmost expression of the will of the people. Indeed, with a 67.9% turnout in the 1978 referendum which approved the Spanish Constitution (above the 67.1% average), 90.5% of the Catalonian people voted in favour of the Spanish Constitution, above the 87.9% of favourable results for the country as a whole and –interestingly- above the 86.1% endorsement which it received in Madrid. For the avoidance of doubt, of the 17 Autonomous Communities and two Autonomous Cities that make up Spain, the Spanish Constitution obtained the fourth highest approval by the Catalonian people. The break-down for Autonomous Communities is published in different places, for instance in the website of the Barcelona City Council: http://www.bcn.cat/estadistica/castella/dades/telec/ref/ref78/r22.htm. This endorsement of the Catalonian people to the political community and to the rules that apply is no surprise for the well-informed observer, given that Catalonian nationalist leaders played a crucial leadership role in the design of Spain’s decentralised State which the Constitution sought to create. To sum up, any analysis built on the premise that the Spanish Constitution constitutes a legal order “alien” to the Catalonian people is flawed. Therefore, any new expressions of the will of the people do not exist in a legal vacuum, but rather against the will already expressed.

In the 2015 Catalonian elections (the last time the Catalonian people lawfully expressed their will) and with a 68% turnout (in one of the highest participation levels Catalonia has seen), the will of the people gave 47.7% of votes to the pro-independence parties (which meant a loss of votes and seats in parliament in relation to the previous regional elections) and 51.7% to parties which oppose independence. Despite obtaining a minority of votes, the electoral system resulted in pro-independence parties obtaining the majority of seats in the Catalonian Parliament (72 out of 135). It is difficult to see how the will of the minority of electors qualifies as “the will of the people” of sufficient legitimacy to overthrow the will of the Catalonian people so overwhelmingly expressed in the 1978 referendum. As to whether the results of the referendum of independence held on 1st October are to be given any credit, speculation as to what the results would have been is surely not a serious approach to decision-making of such enormous significance for the future of the Catalonian people.

More recently, calls have been made by the Spanish government, opposition political parties, other regions in Spain (including the Basque Government) and business associations (with all companies with presence in the stock market having already moved their headquarters to other Spanish regions) for the Catalonian government to call elections to the Catalonian parliament, thus allowing for the will of the Catalonian people to be expressed within the currently established legal order. Despite the continuous rhetoric of the Catalonian government about democracy, it has so far refused to call on electors as a whole (rather than those in favour of secession) to express their will. It is worth noting that commentators agree that a call for Catalonian elections would stop the application of article 155 of the Spanish Constitution (a provision imported from the German Constitution), whose purpose is to restore legality.

Negotiations

A lot has been said about the need to enter into negotiations, but virtually nothing on what exactly is to be negotiated. Professor Weller notes that ‘Spain has refused’ the calls for negotiation issued by the Catalonian government. The Spanish Government argues otherwise. More recently, it would appear that the offer to the Catalonian Government to bring the discussion into the Spanish Parliament, where the sovereign will of the People lies (and whose upper chamber represents territorial interests) was rejected by the Catalonian government, which may have requested negotiations to be between governments alone. Media reports say that the Catalonian government may be reconsidering this position and might bring its arguments to the debate scheduled in Senate later this week.

Furthermore, nothing prevents the reform of the Spanish Constitution, including its reform to recognise a right to secession of autonomous communities. Such reform needs of course to be done within the established framework which, as noted above, is the one endorsed by the Catalonian people in 1978. The Catalonian government has so far not undertaken any steps in this direction.

Democracy and the rule of law

Professor Weller expresses surprise at the Spanish Constitutional Court’s enforcement powers, when he notes that ‘[s]omewhat oddly, it has recently started to act as enforcement agent of its decisions’. Yes, courts are annoying like that. They insist in overseeing the executive power and on ensuring that the legally binding nature of its decisions be actually enforced. This is particularly the case of the highest judicial instances in democratic States based on the rule of law. We saw another example of this irritating judicial attitude when the Supreme Court of England and Wales decided to interfere with British Government plans not to consult with Parliament (where sovereign will lies) about a matter of such constitutional relevance as the Brexit process.

I would like to begin by thanking Prof Wellers’ sincerity when he recognises that his post is a party report ‘commissioned’ by the main secessionist party in Catalonia. Not surprisingly, his analysis subtlety paves the way towards independence.
From my point of view, the first flaw in this post is its apparent straightforward acceptance of the unreliable data provided by the Catalan regional government. In the so-called ‘referendum’ of 1 October 2017 people could vote several times in different polling stations (following the principle vote early, vote often) and there is evidence that some people did so indeed. As regards the cleanness of the counting or the absence of rigged election, the standards were unacceptable for a western democracy (e.g. in some cases, the voting took place in private homes of secessionist leaders without any external independent supervision). Before 1 October (and therefore before any riot police intervention), the Venice Commission formally notified the regional Catalan government that the referendum that they had called did not respect the Code of Good Practice on Referendums adopted by the Council for Democratic Elections in Venice (2006) and the Venice Commission at its 70th plenary session (16-17 March 2007) (CoE Doc. CDL-AD(2007)008). Since under such circumstances, any assessment of the results is purely speculative, let us look for reliable non-disputed facts that can give evidence of Catalan popular will.
The secessionist Catalan government already organized an illegal referendum (its celebration was prohibited by the Spanish Constitutional Court) on independence in 2014. In a very criticized decision, the police did not intervene to enforce the Constitutional Court judgment. According to the Catalan government only 33% of the registered voters participated and 80% of them voted for independence (Catalan parties against independence asked their voters not to participate). After more than 70% of the Catalan population turned their backs on the regional government’s proposal for independence, the latter decided to call for a new (‘binding’) referendum in the form of regional elections (in 2015). These were legal and standardized elections with a participation of 77.45% of the census. The result was 48% of the votes for parties favouring independence and 51% for parties against independence. In spite of this, due to the electoral rules (you need more votes to obtain a seat in urban areas), the secessionist parties achieved a tiny majority of MPs. This small majority in the Catalan Parliament, which is even insufficient to reform the Catalan Statute of Autonomy, has been used to call for a third (again illegal) referendum in three years (October 2017referendum), to pass laws in blatant violation of the Spanish Constitution and the Catalan Statute of Autonomy and to declare the independence of Catalonia (although the effects of the declaration were ‘provisionally suspended’ immediately after by the president of the Catalan government). In the most recent elections to the Spanish Parliament (2016), that again complied with all the standards established by the Council of Europe and namely the Venice Commission, the results (with a participation of 65.61% of the Catalan census) show that 64.92% of the Catalans voted in favour of parties that are against independence and 32.09% for secessionist parties. Under such circumstances, giving any credibility to the Catalan regional government when they say that 90% of the Catalans voted in favour of independence in the so-called referendum of 1 October is not only naïve, it is a contribution to a clear manipulation of Catalans’ will.
My second point of disagreement with this post concerns your weakening of one of the key requisites of statehood: an effective independent government. When the ICJ found that the tribes and nomad groups that inhabited the Western Sahara region could not be considered a state because they lacked an independent and effective government, it was establishing a factual situation (ICJ Reports, Western Sahara, 1975, 63). The ICJ did not mean that these people were potentially incapable of governing themselves if they were given the chance to do it. Thus this requisite of statehood identifies a material situation (principle of effectiveness) and not just a theoretical capacity for self-government, as any piece of land inhabited by human beings would have such a potential capacity (and this requisite would be meaningless). And the de facto situation is that there is an independent and effective government in Catalonia: the Spanish one, as anyone crossing its borders or paying taxes in that territory can certify. The leader of the governing party in Catalonia, Artur Mas, recognised in an interview with the Financial Times on 5 October 2017 that a Catalan State could not be created right away because they lacked the main elements to make it work (he mentioned the effective control of the territory, a tax administration and a judicial system). But all these facts do not prevent your conclusion that ‘Catalonia is, at least potentially, capable of statehood’. Of course, and who is not?
A third criticism of your analysis is its argument on the irrelevance of the blatant violation of Spanish and Catalan constitutional law when evaluating the Catalan government’s behaviour as regards international law. The rule of law is an indispensable component of democracy in Western Europe and there is positive international law protecting it. The Council of Europe and the European Union envisage a whole set of sanctions for governments denying basic rights to the opposition parties, disobeying the courts and organising fraudulent referendums. Any comparison with the situation in Kosovo is inappropriate and untenable. Spain is a fully-fledged democracy that respects human rights, guarantees an ample political autonomy to its regions as a de facto federal State and respects the separation of powers. The Member States and institutions of the EU have insisted on the respect of the rule of law and systematically declared that they will not recognize the independence of Catalonia under the present circumstances. This shows how relevant respect for the rule of law is for any international legal analysis of the Catalan question.
The image of the riot police closing polling stations by the use of force is appalling even if it was done following a judge order. However, this regrettable situation does not allow speaking of widespread ‘increasing human rights violations committed by the central government over the past weeks’. Catalan culture and language have never been so well protected since the creation of Spain as in the last 40 years. Secessionist rallies and parties are free. Unfortunately, at the time of writing, the Catalan secessionist leaders continue refusing to seat around a table to discuss a reform of the Spanish Constitution that could meet some of their demands. They only accept to negotiate the terms of secession. And at some point even democratic States have to use the legal instruments at their disposal to implement the rule of law and to avoid chaos and economic uncertainty.
Let me finish by saying that I cannot agree more with your last phrase: The lesson of the past therefore may be that it is good to talk.

Prof. Weller and his team have delivered a legal opinion to the highest standards of quality. But Prof. Weller is also to be commanded on his honesty for having disclosed that his opinion was commissioned by one of the parties to the dispute. I’m an international arbitrator and used to deal with and recognize expert opinions produced at the parties’ request. My humble advice for readers then: to focus on what Prof. Weller did not say rather than on what he said.

In response to Maria-Teresa Gil-Bazo:
In the 2015 elections to the Catalan Parliament (the last ones):

The percentage of votes to pro-independence parties was: 48%
The percentage of votes to anti-independence parties was: 42%
The percentage of votes to pro-agreed referendum parties without a public position on the issue of independence was: 10%
The turn-out percentage was: 75%

[…] law. It very much IS prohibited by Spanish law – and I agree with all of the commentators to Marc Weller’s post who said, contra Marc, that it is perfectly appropriate to judge the Catalan attempt at secession […]

I know it is difficult, but I will try to win the competition to discover which of the many flaws of prof. Weller piece is the main one. I would say that it is the use of the word ‘Catalonia’ as the name of a sovereign demos, which it is not and never has been. By doing so, he begs the whole question, assuming from the start what is being discussed.

About the Author(s)

Marc Weller

Marc Weller is Professor of International Law and International Constitutional Studies in the University of Cambridge. He is the former Director of the Lauterpacht Centre for International Law and the Principal Editor of the Oxford Handbook on the Use of Force in International Law. Read Full